Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (The Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the club
C,
as Claimant
against the player
M,
as Respondent 1
and the club
S,
as Respondent 2
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
On 5 July 1999, the club, C (hereinafter: the Claimant) acquired from J
(hereinafter: J) “50% of the rights” of the player, M (hereinafter: the Respondent
1), for a fee amounting to 500,000,000 allegedly equalling to EUR 1,291,142.25.
2.
On the same day, the Respondent 1, born on 26 March 1977, and the Claimant
signed an employment contract valid as from 1 July 1999 until 30 June 2004.
3.
On 30 May 2000, the Claimant paid to J an additional fee of 8,000,000,000
allegedly equalling to EUR 4,131,655 in order to acquire the second half of “the
rights” of the Respondent 1.
4.
On 10 November 2000, the Respondent 1 and the Claimant signed a second
employment contract valid as from 1 July 2000 until 30 June 2005.
5.
On 18 October 2003, the Respondent 1 and the Claimant signed a third
employment contract valid as from 1 July 2003 until 30 June 2008 providing for a
yearly gross salary of EUR 569,000 or EUR 310,000 net.
6.
On 20 September 2005, the Respondent 1 and the Claimant signed a fourth
employment contract valid as from 1 July 2005 until 30 June 2010 (art. 1)
(hereinafter: the contract).
7.
Under the terms of art. 2 of the contract, the Respondent 1 was entitled to
receive, for each of the seasons 2005/2006, 2006/2007, 2007/2008, 2008/2009 and
2009/2010, a yearly gross salary of EUR 623,000 or EUR 350,000 net.
8.
According to a separate agreement dated 20 September 2005, the Respondent 1
was entitled to receive, for each season the Respondent 1 would remain with the
Claimant, a yearly “loyalty bonus” of EUR 200,000 net, payable each season in two
instalments (EUR 350,878 gross).
9.
By means of a letter dated 8 June 2007 addressed to the Claimant, the Respondent
1 terminated the contract as from the end of the 2006/2007 season. The
Respondent 1, in this respect, wrote that the relevant communication had been
made within 15 days following the last official match of the season as well as at
the end of the protected period. In this respect, the Respondent 1 stated, in his
termination notice, that the pertinent protected period ended at the end of the
2006/2007 season and that the Dispute Resolution would have to quantify to
amount of compensation to be awarded to the Claimant, if any.
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10.
On 10 July 2007, the Respondent 1 and the club, S (hereinafter: the Respondent 2)
signed an employment contract valid as from 10 July 2007 until 30 June 2011 (art.
2 of the pertinent employment contract).
11.
Under art. 3 of the said contract, the Respondent 1 was entitled to receive a net
monthly salary of EUR 18,000 payable 14 times - approximately amounting to a
monthly salary of EUR 23,684.21 gross - as well as a contract premium (“prima de
contrato”) of EUR 798,000 net due for each season - approximately amounting to
EUR 1,050,000 gross -. Furthermore, according to an annexe to the contract, the
Respondent 1 was entitled to receive several variable bonuses.
12.
On 13 August 2007, the Single Judge of the Players’ Status Committee decided
that the Football Federation E was authorized to provisionally register the
Respondent 1 for the Respondent 2, pending the outcome of the contractual
dispute, which would have to be dealt with as to its substance by the Dispute
Resolution Chamber.
13.
On 18 April 2008, the Claimant lodged a complaint before FIFA against the
Respondents 1 and 2 claiming that the Respondent 1 had breached the contract
without just cause during the protected period and that the Respondent 2 had
induced the Respondent 1 to commit the said breach of contract.
14.
In particular, the Claimant requested jointly and severally from the Respondents 1
and 2 the payment of a compensation for breach of contract of EUR 23,267,594,
plus 5% of interest as from 8 June 2007. Furthermore, the Claimant requested the
imposition of sporting sanctions on the Respondents 1 and 2.
15.
In this respect, the Claimant strongly emphasised the exceptional role of the
Respondent 1 in a sporting – the Respondent 1 was an alleged outstanding
example for the team, which he helped to qualify for competitions – and in a
commercial point of view – the Respondent 1’s talent was apparently crucial for
the supporters and for the team’s sponsors –. The Claimant also explained having
invested a lot in the Respondent 1, in particular, in view of the significant
remuneration and bonuses received (cf. no. I.24 and I.25 below).
16.
The Claimant further stated that, on 5 July 1999, it had acquired “50% of the
Respondent 1’s right” from J for an amount of EUR 1,291,142.25 (cf. no. I.1. above)
and, in May 2000, the second portion of 50% of “the Respondent 1’s right” for an
amount of EUR 4,131,655 (cf. no. I.3 above). The Claimant also alleged having paid
an amount of EUR 60,000 (EUR 50,000 + VAT 20%) to the agent, Mr X, in
connection with the conclusion of the contract. The Claimant, in this respect,
provided FIFA with the relevant acknowledgement of debt from the Claimant in
favour of the agent.
17.
In continuation, the Claimant explained that, on 8 June 2007, the Respondent 1
had notified it the termination of the contract, whereas the Claimant had already
been aware that, by the end of May/beginning of June 2007, the Respondent 2
had been negotiating the conclusion of an employment contract with the
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Respondent 1 without having informed the Claimant. In this respect, the Claimant
was eager to emphasize that, on 7 June 2007, it had sent a letter to FIFA and the
Football Federation I informing them of the improper negotiations apparently
held between the Respondents 1 and 2 (cf. no. I.21 below).
18.
Equally, the Claimant maintained that the unilateral termination of the contract
by the Respondent 1 occurred without just cause, adding that it had always
complied with its contractual obligations as well as systematically increased the
Respondent 1’s salary in the subsequent employment contracts.
19.
The Claimant continued stating that the breach of contract intervened during the
protected period. In this respect, the Claimant explained that, on 20 September
2005, it had concluded a new employment contract with the Respondent 1, by
means of which the relevant parties agreed upon an extension of their contractual
relationship until 30 June 2010.
20.
In that respect, the Claimant pointed out that, according to the internal
associative Regulations, an employment contract enters into force the day on
which the relevant contract is recorded and received at the League. The Claimant
held that, in casu, the contract had been deposited on 22 September 2005, which
constitutes, in the Claimant’s opinion, the dies a quo of the protected period.
However, the Claimant stressed that four matches of the 2005/2006 season had
already been played to that date. Therefore, the Claimant considered that the
2005/2006 season could not be considered as the first “entire season” in the sense
of the Definition no. 7 of the Regulations on the Status and Transfer of Players,
and, consequently, considered that the first pertinent “entire season” to
determine the beginning of the protected period was the 2006/2007 season. In
continuation, according to the Claimant, the two relevant entire seasons of the
protected period would have expired at the end of the 2007/2008 season, i.e. on
18 May 2008, date of the last match of that season. As a result, by having notified
the termination of the contract on 8 June 2007, the Respondent 1 allegedly
terminated the contract without just cause during the protected period. The
Claimant was also eager to note that the date of 21 September 2007 could not
constitue the dies ad quem of the relevant protected period, since art. 16 of the
Regulations on the Status and Transfer of Players prohibits the termination of a
contract during the course of a season.
21.
In continuation, the Claimant maintained that the Respondent 2 had induced the
Respondent 1 to breach the contract. In that regard, the Claimant held that, in
May 2007, the Respondent 2 was negotiating with the Respondent 1 without
having informed the club C in accordance with the relevant provision of the FIFA
Regulations. The Claimant based its statement on the fact that it had been
allegedly informed of the Respondent 2’s interest in the Respondent 1’s services by
the agent, Mr. P, who apparently tried to set up a meeting between the
representatives of the two clubs to the dispute on 5 June 2007. As a matter of
proof, the Claimant produced a text message, whose contents had been certified
by public notary, sent by Mr P, to Mr M, General Technical Manager of the
Claimant. Based on the foregoing as well as on the Claimant’s letter dated 7 June
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2007 sent to FIFA and the Football Federation I (cf. no. I.17 above), the Claimant
was of the opinion that the termination of the contract by the Respondent 1 was
subsequent to the alleged negotiations held between the Respondents 1 and 2.
Thus, the Claimant stated that the Respondent 2 had induced the Respondent 1 to
commit a breach of contract. Furthermore, and still in this context, the Claimant
put emphasis on the fact that, at the time of the unilateral termination of the
contract by the Respondent 1, the contractual relationship between it and the
Respondent 1 did not suffer any complaint from the Respondent 1.
22.
On account of all the foregoing, the Claimant requested the payment of a
compensation for breach of contract jointly and severally from the Respondents 1
and 2.
23.
The Claimant was, in continuation, eager to specify all the amounts paid to the
Respondent 1 for the period of time as from 5 July 1999 until 8 June 2007, i.e. a
total amount of EUR 5,894,417 composed as follows:
season 1999/2000
gross salary EUR 224,659; gross bonus EUR 69,370
season 2000/2001
gross salary EUR 380,525; gross bonus EUR 20,283
season 2001/2002
gross salary EUR 380,525; gross bonus EUR 80,717
season 2002/2003
gross salary EUR 380,525; gross bonus EUR 54,801
season 2003/2004
gross salary EUR 569,000; gross bonus EUR 72,728
season 2004/2005
gross salary EUR 569,000; gross bonus EUR 159,169
season 2005/2006
gross salary EUR 623,000; gross bonus EUR 396,730
season 2006/2007
gross salary EUR 672,350; gross bonus EUR 767,989
8 years rent
EUR 74,400 (EUR 9,300 yearly). In this
respect, the Claimant submitted FIFA an agreement dated 18 October
2003 signed by the Respondent 1 and the Claimant.
welfare and social security
EUR 205,627
remuneration to Agent
EUR 193,019 (EUR 160,849 + VAT 20%)
In respect of the aforementioned figures, the Claimant provided FIFA with a
statement and a chart established by its Administrative Manager. More specifically
with regard to the agent’s alleged remuneration, the Claimant stated that the
amount had been due in relation to the several renewals of the employment
contracts. In this respect, the Claimant provided FIFA with several
acknowledgements of debt dated 10 November 2000 in favour of s.r.l. for an
amount of 180,000 + VAT, 18 October 2003 in favour of S.p.A for an amount of
EUR 125,000 and dated 20 September 2005 in favour of Mr X for an amount of
EUR 50,000 + VAT 20% respectively (cf. no. I.16 above).
24.
The Claimant clarified that the amount related to the aforementioned bonuses
included for the 2005/2006 and 2006/2007 seasons the loyalty bonus of EUR
350,850 gross and a “collective bonus” of EUR 45,880 and EUR 417,111
respectively. The Claimant added that the “collective bonus” was paid on a pro
rata basis and was proportional to the player’s performance as well as his
leadership in the team.
25.
In continuation, the Claimant analysed the objective criteria as stated in art. 17 of
the Regulations on the Status and Transfer of Players, i.e. the remaining period of
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the existing contract, the fees or expenses paid or incurred, the fact that the
termination of the contract without just cause occurred, according to the
Claimant, during the protected period.
26.
In that context, the Claimant stated that, at the time of the breach, the contract
was valid for another 3 years, i.e. the period 2007-2010, during which the Claimant
would have supposedly borne costs in a total amount of EUR 4,535,422 divided as
follows: EUR 2,017,050 as contractual remuneration, EUR 96,505 as additional
contributions calculated according to the sums paid during the season 2006/2007,
EUR 2,303,967 for individual (EUR 350,878 gross per season) and collective (EUR
417,111 per season according to the amount allegedly settled during the last
sporting season) bonuses, EUR 27,900 for the rent and EUR 90,000 for the accruals
of the compensations for the agents.
27.
Subsequently, the Claimant maintained that the amount paid to the Respondent
1’s former club, J, i.e. EUR 5,422,797, had not been amortized at the time of the
breach. Furthermore, the Claimant stated the said amount should be amortized
over a period of 8 years, i.e. as from the 2002/2003 season, since the Respondent 1
begun constantly and permanently to play official matches at that period only.
Thus, an amount of EUR 2,519,631.54 had to be considered within the calculation
of the relevant compensation.
28.
Moreover, the Claimant held that the compensation should be increased in the
most important scale, since the Respondent 1 allegedly breached the employment
contract during the protected period.
29.
Finally and based on the above, the Claimant requested the payment of a
compensation for breach of contract of a total amount of EUR 23,267,594
composed as follows:
EUR 11,338,555
remaining value of the contract of EUR 4,535,422
multiplied by a coefficient of 2.5, for the following
reasons: the breach of contract occurred during the protected period, the
Claimant had invested a lot financially in the Respondent 1 – investments
to “purchase” the Respondent 1, salaries and other benefits granted –,
the Claimant had difficulties to find a substitute, the alleged extremely
important role of the Respondent 1 in the team, the particular
circumstances of the case and the behaviour of the Respondents 1 and 2,
who allegedly held secret negotiations, the considerable image and
economic damages in the Claimant’s commercial and corporate
relationships with the supporters, sponsors and any other partner and the
loss of sporting opportunities and economic resources,
EUR 2,519,632
non-amortised expenses at the time of the breach
EUR 502,761
“missing profit coming from stadium season tickets
revenues”. In this respect, the Claimant provided
FIFA with a chart established by the Claimant’s Administrative Manager.
EUR 186,266
“missing profit coming from stadium tickets
revenues”. In this respect, the Claimant provided
FIFA with a chart established by the Claimant’s Administrative Manager.
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EUR 563,036
“image damages towards the sponsors; the damage
is calculated on an equitable basis as the 5% of the
amount of sponsor contracts (…)”. In this respect,
the Claimant provided FIFA with a chart established by the Claimant’s
Administrative Manager as well as with a letter dated 25 June 2007 of its
technical sponsor, by means of which the latter informed the Claimant
that it would reassess the amount of sponsorship, in case the Respondent
1 would leave the Claimant.
EUR 1,407,344
“damages due to the loss of sporting opportunities
and the subsequent direct and indirect earnings; the
damage is calculated on an equitable basis as the 2%
of the amount of the earnings from the contributions by XXX, as well as
the TV rights (…)”,
EUR 6,750,000
“for the accruing damage correlated to the actual
value of the Player Services, i.e. the cost at which
such services could have been available on a “transfer basis”, had S and M
acted lawfully, “market value” of a goalkeeper that belongs to the
highest level of competiveness, to which M surely belongs (…)”.
30.
On 27 June 2008, the Respondent 2 rejected the claim lodged by the Claimant.
31.
First of all, the Respondent 2 rejected the Claimant’s allegations, according to
which it would have induced the Respondent 1 to breach the contract. In this
respect, it enlightened the fact that the Claimant did not establish such element
and that the evidence provided in that respect were irrelevant. Furthermore, the
Respondent 2 pointed out that it had not had any contact whatsoever with the
Respondent 1 before the occurrence of the termination of the contract notified by
the Respondent 1 on 8 June 2007. To corroborate the foregoing, the Respondent 2
emphasized that the Respondent 1 and itself had allegedly started to negotiate
only once the contract had expired on 30 June 2007 and that they had signed an
employment contract on 10 July 2007 only, i.e. one month after the termination of
the contract. In this respect, the Respondent 2 provided FIFA with several press
releases allegedly demonstrating that the Respondent 2 started to be interested in
the Respondent 1’s services only once the latter had terminated the contract
signed with the Claimant, that the Respondent 2 was interested in the services of
another goalkeeper and finally that the Respondent 1 constituted an interest for
several other clubs.
32.
Moreover, the Respondent 2 contested the fact that the relevant breach
committed by the Respondent 1 had occurred within the protected period.
Indeed, the Respondent 2 stated that, according to the Definition no. 7 of the
Regulations on the Status and Transfer of Players, the protected period is a period
of two or three entire seasons or years following the entry into force of the
contract. In casu, the Respondent 2 held that, in virtue of its art. 1, the contract
entered into force on 1 July 2005. In that context, the Respondent 2 was eager to
recall that it was customary in the world of football that an employment contract
enters into force at a date anterior to the actual date of signature. The
Respondent 2 also stressed that the contract renewed in September 2005 provided
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for an increased remuneration in favour of the Respondent 1 due as from July
2005, confirming the validity of the contract since that date.
33.
Furthermore, and with regard to the compensation for breach of contract claimed
by the Claimant, the Respondent 2 did not contest its obligation to compensate
the Claimant in accordance with art. 17 par. 1 and 2 of the Regulations on the
Status and Transfer of Players. However, the Respondent 2 contested the amount
of compensation claimed as well as all the figures advocated by the Claimant.
34.
In that respect, the Respondent 2 pointed out, in particular, that art. 17 of the
Regulations on the Status and Transfer of Players was solely applicable, excluding
the application of any national regulations. In continuation, the Respondent 2
stated that, in accordance with the said provision, the residual remuneration
under the existing contract had to be taken into account, without considering the
remuneration previously paid to the Respondent 1 prior to the termination of
contract under the terms of the expired contracts. It also pointed out that the fee
paid to the agent was of EUR 60,000 (EUR 50,000 plus VAT of 20%) as firstly
alleged by the Claimant, and not of EUR 193,019 as secondly alleged by the
Claimant. The Respondent 2 also held that the fixed remuneration only, excluding
any variable remunerations, had to be taken into consideration for the calculation
of the compensation. Moreover, the Respondent 2 enlightened that the
termination of contract occurred almost three months before the end of the
summer registration period.
35.
In continuation, the Respondent 2 recalled that the Respondent 1 had remained
with the Claimant for a period longer than the initially fixed term of five years
agreed upon by the relevant parties in the first employment contract signed on 5
July 1999. Therefore, according to the Respondent 2, the fee allegedly paid by the
Claimant to J had been fully amortized.
36.
Moreover, the Respondent 2 rejected the application of the “player’s market
value”, in conformity with the “Webster case”, as well as the allegedly missing
profit related to the sale of tickets, image and TV rights, which were not, in the
Respondent 2’s opinion, supported by any evidence and which were not relevant
with regard to the application of art. 17 of the Regulations on the Status and
Transfer of Players.
37.
In conclusion, the Respondent 2 maintained that the objective criteria listed in art.
17 of the Regulations on the Status and Transfer of Players applicable to the case
at hand were the residual value of the existing and/or the new contract and the
possible amortisation of the expenses of EUR 60,000 paid to the agent in relation
to the contract signed on 20 September 2005.
38.
The Respondent 2 also objected to the imposition of sporting sanctions, since the
breach of contract had allegedly occurred outside the protected period.
39.
On 14 July 2008, the Respondent 1 provided FIFA with his position, by means of
which he fully rejected the claim lodged by the Claimant.
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40.
In this respect, the Respondent 1 firstly pointed out that he had devoted 8 years of
his career to the Claimant fulfilling exemplarily all of his contractual obligations
and that he had reached a moment, in which “he needed to situate himself in a
forum and environment which allowed him to continue to develop.” Furthermore,
the Respondent 1 explained that the FIFA Regulations cannot be read or
interpreted in any way so as to hinder the intrinsic rights of players grounded
upon I Constitution and EU Law, such as his freedom to pursue his personal and
professional ambitions and freedom of movement. Moreover, the Respondent 1
emphasised that the Claimant could not seek to be compensated in hyperbolic
amounts far above and well beyond the FIFA Regulations, so as to result in a sum
of punitive nature.
41.
Moreover, the Respondent 1 maintained having signed an employment contract
with the Respondent 2 on 10 July 2007, i.e. after the termination of the contract.
Therefore, according to the Respondent 1, neither secret negotiations were held
with the Respondent 2 nor had the latter induced him to breach the contract. The
Respondent 1 also underlined that the text message presented by the Claimant
did not refer to any player and, therefore, was totally inconclusive (cf. no. I.21
above).
42.
In addition, the Respondent 1 maintained that he had not terminated the contract
during the protected period. In this respect, the Respondent 1 quoted art. 1 of the
contract, which stipulates that “Mr. S undertakes, in his capacity of professional
footballer registered with the XXX. (…) to perform his activity in the team of the
club C starting on the 01/07/2005 up to June 30th, 2010.”. Thus, in the Respondent
1’s opinion, the contract entered into force on 1 July 2005, which constitutes the
starting point for the assessment of the duration of the protected period.
Furthermore, the Respondent 1 stressed that he was already 28 years old, when he
signed the contract on 20 September 2005 and that the Claimant played its last
match of the 2006/2007 season on 27 May 2007. Thus, and since the termination
letter of the Respondent 1 was dated 8 June 2007 and stated that the contract had
to be considered as terminated as of the end of the 2006/2007 season, both two
complete seasons and two years had elapsed as from the date of entry into force
of the contract. In this context, the Respondent 1 was also eager to emphasize
that the notice of termination had been given within the timeframe imposed by
art. 17 par. 3 of the Regulations on the Status and Transfer of Players.
43.
Moreover, the Respondent 1 recognised having unilaterally terminated the
contract but contested the amount of compensation for breach of contract
claimed by the Claimant considering it as unreasonable.
44.
In particular, the Respondent 1 stressed that the compensation requested by the
Claimant appeared to be in contradiction with the FIFA Regulations, in particular
its art. 17, and of punitive nature.
45.
The Respondent 1 added that, based on the so-called “Webster case”, the
compensation shall be calculated on the basis of the FIFA Regulations without
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considering any national Rules. He further alleged that the compensation shall be
based on the remaining remuneration due under the existing employment
contract only without taking into account the already paid remuneration. The
Respondent 1 was also of the opinion that the amounts paid in order to acquire
his services had been totally amortized, since he had offered his services to the
Claimant for a total of 8 years, i.e. more than the fixed period of 5 years initially
agreed upon by the relevant parties.
46.
In continuation, the Respondent 1 reviewed the detailed breakdown of the
damages allegedly suffered by the Claimant and stated that no compensation
should be awarded to the Claimant, since the latter’s argumentation in this
respect lacked of any factual and legal ground.
47.
In this respect, the Respondent 1 put emphasis on the fact that the remaining
value of the contract (EUR 4,535,422 multiplied by a coefficient of 2.5) lacked of
documentary evidence as well as legal supportive argumentation. He further
noted that he was entitled to receive a yearly gross salary of EUR 623,000, and not
EUR 672,350.04 as alleged by the Claimant, an annual bonus of EUR 350,878 as
well as EUR 9,300 in order to cover his housing expenses. Thus, according to the
Respondent 1, any other amounts advocated by the Claimant should be
disregarded. With regard to the collective bonus, he emphasized that there was
no such evidence in support of the fact that he would have been granted it for the
remaining three seasons, adding that the amount of EUR 417,111 paid for the
2006/2007 season allegedly represented in a large part late payments of bonuses
due for the previous seasons.
48.
Equally, the Respondent 1 held that the alleged transfer fee paid by the Claimant
to J had been amortised over the terms of the first contract and that it could not
be taken into consideration, since he remained with the Claimant for a period
longer than the one initially provided for in the first employment contract.
49.
The Respondent 1 further noted that the amounts of EUR 502,761 and EUR
186,266 respectively, related to missing profit resulting from stadium tickets
revenues, EUR 563,036 as image damages and EUR 1,407,344 as loss of sporting
opportunities were irrelevant to the case at hand, in no relation with the
Respondent 1’s termination of the contract and were not supported by any
documentary evidence.
50.
Furthermore, the Respondent 1 fully rejected the application, in the calculation of
the compensation, of his alleged “market value” of EUR 6,750,000, since this
criterion, as confirmed in the “Webster case”, is absent of the list of criteria
enumerated in art. 17 of the Regulations on the Status and Transfer of Players.
51.
Finally, the Respondent 1 emphasized that no sporting sanctions shall be imposed
on him, since the breach of contract had occurred outside the protected period.
52.
On 19 September 2008, the Claimant provided FIFA with its reaction, by means of
which it adhered to its position and previous conclusions.
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53.
The Claimant reiterated the fact that the Respondent 2 and the Respondent 1 had
held, in May 2007, negotiations in view of concluding an employment contract,
without, however, informing the Claimant. In this respect, the Claimant remitted
to FIFA two statements dated 8 and 9 September 2008 from the agent, X, and
from the Claimant’s Director, Mr. M, respectively, who confirmed that the
Respondent 2 appointed the agent, Mr P, in order to negotiate a possible transfer
of the Respondent 1.
54.
The Claimant was also eager to recall that art. 17 of the Regulations on the Status
and Transfer of Players does not confer a “right” for a player and/or a club to
terminate an employment contract, since the principle at the centre of the
regulations is the maintenance of contractual stability. Equally, the Claimant was
eager to emphasize that the list of criteria stipulated in the aforesaid provision
was not exhaustive. Thus, according to the latter, all the damages alleged in its
statements have to be compensated by the Respondent 1 and the Respondent 2.
In this respect, and in order to properly calculate the relevant compensation, the
competent deciding body shall consider that the club had invested in the
Respondent 1’s salary, in his trainings as well as to acquire “the Respondent 1’s
rights”, and that the club is subject to indirect damages affected by sporting
results, such as ticket sales, TV rights, sponsors.
55.
With regard to the issue whether the breach of contract committed by the
Respondent 1 occurred during or outside the protected period, the Claimant
stated that, according to the national regulations, which shall prevail on the FIFA
Regulations, a contract can enter into force only once it had been approved by the
National League. Therefore, according to the Claimant, the date of 1 July 2005,
which would be significant with regard to economical issues only, could not
constitute the relevant dies a quo to establish the beginning of the protected
period.
56.
On 28 November 2008, the Respondent 2 submitted its final position, by means of
which it recalled its previous arguments, in particular, that it had not induced the
Respondent 1 to commit a breach of contract. Furthermore, the Respondent 2
underlined that national law and/or regulations, in casu the regulations, do not
have to be applied in the matter at hand, since the Regulations on the Status and
Transfer of Players do not contain any lacuna.
57.
On 2 December 2008, the Respondent 1 recalled its arguments presented in his
previous statement and, consequently, adhered to his conclusions included
therein.
58.
The Respondent 1 added that the argumentation submitted by the Claimant in
relation to the duration of the protected period in the matter at hand was not
sustainable, since the internal regulations advocated by the Claimant do not have
any impact on the entry into force of the contract.
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59.
The Respondent 1 further recalled that the “law of the country concerned” was
one of the elements that could be taken into account to calculate the
compensation due in case of a breach of contract based on art. 17 of the
Regulations on the Status and Transfer of Players and certainly not the basis of the
calculation. The Respondent 1 also argued that, in conformity with the “Webster
case”, the said compensation should not be of punitive nature and should be of
equal amount whether the breach was committed by a player or by a club.
60.
With regard to the calculation of the compensation, the Respondent 1 noted that
the amounts, he was entitled to in virtue of the contract and enumerated in his
first position (cf. no. I.48 above), had not been contested by the Claimant in its
submission dated 19 September 2008. Furthermore, the Respondent 1 reiterated
that none of the damages allegedly suffered by the Claimant in consequence of
the Respondent 1’s departure was evidenced. In particular, the Respondent 1
underlined that the Claimant did not submit evidence that its technical sponsor
decided to reduce its partnership fee.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 18 April 2008, thus before the aforementioned Rules entered into force
on 1 July 2008. Therefore, the Chamber referred to art. 18 par. 2 and 3 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC) (hereinafter: Procedural Rules; edition 2005) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter
at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. a) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute in relation to
the maintenance of contractual stability where there has been an International
Transfer Certificate (ITC) request and a claim from an interested party in relation
to the said ITC request.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 18 April 2008
and that the relevant employment contract was signed on 20 September 2005. The
Dispute Resolution Chamber concluded that the 2005 version of the Regulations
12
for the Status and Transfer of Players (hereinafter: the Regulations) is applicable
to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter.
5.
In doing so, the Chamber recalled that, on 20 September 2005, the Claimant and
the Respondent 1 had signed an employment contract set to expire on 30 June
2010. By means of a letter dated 8 June 2007 addressed to the Claimant, the
Respondent 1 served notice of termination of the contract as from the end of the
2006/2007 season pointing out that the termination had been sent within 15 days
following the last match of the season and at the end of the protected period.
6.
This course of events was not contested by the parties as well as the fact that, on
10 July 2007, the Respondents 1 and 2 had concluded an employment contract
valid until 30 June 2010.
7.
Equally, the members of the Dispute Resolution Chamber highlighted that it has
remained undisputed by the Respondent 1 that he had terminated the contract
unilaterally, prematurely and without just cause and by the Respondent 2 that it
had to compensate the Claimant in accordance with art. 17 par. 1 and 2 of the
Regulations. In other words, the Chamber observed that neither the Respondent 1
nor the Respondent 2 argued for the existence of any just cause justifying the
termination of contract by the Respondent 1. Indeed, both the Respondents 1 and
2 limited themselves to contest and, reject, the Claimant’s conclusions regarding
the amount of compensation claimed, considering that it was not corroborated by
any convincing evidence and was disproportionate.
8.
In view of the foregoing, the Chamber observed that all the three parties to the
present dispute acknowledged that the Respondent 1 had terminated the contract
unilaterally and without just cause and concluded that the Respondent 1 had
terminated the contract without just cause.
9.
In continuation, the members of the Chamber analysed whether the unilateral
termination of contract by the Respondent 1 occurred during or outside the
protected period.
10.
The Chamber remarked that the Claimant was of the opinion that the Respondent
1 breached the contract within the protected period, since the pertinent protected
period allegedly ended on 18 May 2008, i.e. the date of the last match of the
2007/2008 season. In this respect, the Claimant argued that, according to national
regulations, an employment contract enters into force the day on which the
relevant contract is recorded and received at the League, which was in casu 22
September 2005. However, the Claimant stressed that the 2005/2006 season could
not be considered as the first “entire season” in the sense of item 7. of the
Definitions of the Regulations, since four matches of the 2005/2006 season had
already been played at that date, and, consequently, considered that the first
pertinent “entire season” to determine the beginning of the protected period was
13
the 2006/2007 season. Therefore, the Claimant deemed that the protected period
had expired at the end of the 2007/2008 season, i.e. on 18 May 2008. Thus, in the
Claimant’s view, by unilaterally terminating the contract on 8 June 2007, the
Respondent 1 had allegedly terminated the contract without just cause during the
protected period.
11.
The Chamber went on examining the argumentation of the Respondents 1 and 2
and noticed that the latters maintained that the contract entered into force on 1
July 2005, which, in their opinion, constituted the dies a quo of the protected
period. Consequently, the Respondents 1 and 2 held that, since the termination
letter had been sent on 8 June 2007, to be effective as from the end of the
2006/2007 season, and since the player was older than 28 years old at the time of
the conclusion of the contract, the unilateral termination of the contract by the
Respondent 1 did not occur within the protected period, which ended at the end
of the 2007/2008 season.
12.
Having recalled the argumentation of the parties, the Dispute Resolution Chamber
referred to item 7. of the “Definitions” section of the Regulations, which
stipulates that the protected period shall be “a period of three entire Seasons or
three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the Professional, or
two entire Seasons or two years, whichever comes first, following the entry into
force of a contract, where such contract is concluded after the 28th birthday of the
Professional”.
13.
In this respect, the Chamber recalled that the Respondent 1 was already 28 years
old when the contract had been concluded in September 2005. As a consequence,
and in virtue of the aforementioned item 7. in fine of the “Definitions”, the
Chamber concluded that the protected period lasted in casu two years or two
entire seasons, whichever came first. The members present at the meeting pointed
out that, in line with the argumentation of the Respondents 1 and 2, the contract
was signed on 20 September 2005 but, in virtue of its art. 1, entered into force on
1 July 2005. As a consequence, and bearing in mind the wording of the item 7. of
the “Definitions” (“following the entry into force of a contract”), the Chamber
considered that the dies a quo of the pertinent protected period started on 1 July
2005. Another interpretation of the pertinent rule would simply be contra legem
and without any relevant justification. To corroborate the foregoing, the members
of the Chamber also underlined that the contract provided for an increase of
salary in comparison to the salary provided for in the previous employment
contract dated 18 October 2003, which had been paid to the Respondent 1 as
from July 2005. Equally, the Chamber was eager to emphasize that the date of the
registration of an employment contract at a Federation or a League cannot be
considered as relevant to establish the entry into force of an employment
contract, and a fortiori the starting point of the protected period, since this act is
of the exclusive responsibility of the club, which could at its own discretion delay
the registration of the employment contract in order to artificially prolong the
protected period to the detriment of a player. In view of the foregoing, the
14
Chamber considered that the protected period finished at the end of the
2006/2007 season.
14.
The members of the Chamber further analysed the termination letter of the
Respondent 1 and remarked that, although the termination notice had been
addressed to the Claimant on 8 June 2007, it expressly stated that the contract had
to be considered as terminated as from the end of the season 2006/2007.
Consequently, the Chamber concluded that the unilateral termination of the
contract without just cause by the Respondent 1 occurred at the end of two entire
seasons, i.e. at the end of the 2006/2007 season, and, therefore, outside the
protected period.
15.
This being established, the Chamber stated that it had to assess the unavoidable
consequences of this unilateral termination, in accordance with the provisions
provided for by Chapter IV of the Regulations.
16.
In this respect, first and foremost, the Chamber deemed it fit to emphasise that
art. 13 and 16 of the Regulations clearly stipulate, respectively, that a contract
between a professional and a club may only be terminated on expiry of the term
of the contract or by mutual agreement and that a contract cannot be unilaterally
terminated during the course of a season.
17.
In addition, the members of the Chamber stressed that art. 17 of the Regulations
does not provide a legal basis for the right to a unilateral termination of a
contract between a professional player and a club. As clearly stated in the award
CAS 2008/X/XXXX FC S v/ Mr M & RZS & FIFA 2008/X/XXXX Mr M & RZS v/ FC S &
FIFA (hereinafter: CAS 2008/X/XXXX-XXXX), “art. 17 FIFA Regulations does not
give to a party, neither a club nor a player, a free pass to unilaterally breach an
existing agreement at no price or at a given fix price.” (cf. § 63 of CAS/2008/XXXXXXXX). In fact, the Regulations are based on the principle of maintenance of
contractual stability and are devoted to the legal maxim of pacta sunt servanda.
18.
In line with the above, the Chamber concurred that by unilaterally and
prematurely terminating the employment contract with the Claimant without just
cause, the Respondent 1 has clearly committed a breach of contract. Consequently,
in accordance with article 17 par. 1 of the Regulations, the Respondent 1 is liable
to pay compensation to the Claimant.
19.
Prior to proceeding to the calculation of the amount of compensation, the
Chamber put emphasis to the primacy of the principle of the maintenance of
contractual stability, which represents the backbone of the agreement between
FIFA/UEFA and the European Commission signed in March 2001. This agreement
and its pillars represent the core of the editions 2001 and 2005 as well as of the
2008 and 2009 version of the Regulations, which all stakeholders – including
player and club representatives – agreed upon in 2001.
20.
Above all, the Chamber was eager to point out that the measures provided for by
the Regulations concerning in particular compensation for breach of contract
15
without just cause serve as a deterrent discouraging the early termination of
employment contracts by either contractual party and that a lack of a firm
response by the competent deciding authorities would represent an inappropriate
example towards all football stakeholders. This element had been clearly recalled
by the Panel in CAS/2008/XXXX/XXXX-XXXX: “The purpose of art. 17 is basically
nothing else than to reinforce the contractual stability, i.e. to strengthen the
principle of pacta sunt servanda in the world of international football, by acting as
a deterrent against unilateral contractual breaches and terminations, be it
breaches committed by a club or by a player.”
21.
In this respect, awarding compensation in favour of the damaged party (either the
player or the club, as the case may be) has proven to be an efficient mean and has
always found a widespread acceptance since it guarantees that the fundamental
principle of the respect of the contracts is duly taken care of.
22.
Above all, it was emphasised that the criteria contained in art. 17 of the
Regulations are applied with the principle of reciprocity for clubs and players,
signifying that both clubs and professionals who are seen to have committed a
breach of contract without just cause will in all cases be subject to pay
compensation and, under specific circumstances, also subject to the imposition of
sporting sanctions.
23.
Having stated the above, the Chamber focussed its attention on the calculation of
the amount of compensation for breach of contract in the case at stake and
reiterated that, when assessing the amount of compensation due for the breach
of contract, it shall take into consideration the specific circumstances of each case
as well as the arguments raised by the parties and the evidence submitted (cf. in
that latter regard art. 12 par. 3 of the Procedural Rules). In doing so, the members
of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including in particular the remuneration and other
benefits due to the player under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years as well
as the fees and expenses paid or incurred by the former club (amortised over the
term of the contract) and whether the contractual breach falls within the
protected period. In this context, the Dispute Resolution Chamber also recalled
that the list of objective criteria is not exhaustive and that the broad scope of
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
24.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the relevant employment contract between the Respondent 1 and
the Claimant contains a provision by means of which the parties had beforehand
agreed upon an amount of compensation for breach of contract. Upon careful
examination of the contract, the members of the Chamber assured themselves
that this was not the case in the matter at stake.
16
25.
As a consequence, the members of the Chamber determined that the prejudice
suffered by the Claimant in the present matter had to be assessed in application of
the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the
Dispute Resolution Chamber emphasised beforehand that each request for
compensation for breach of contract has to be assessed by the Chamber on a caseby-case basis taking into account all specific circumstances of the respective
dispute. The members stated that it falls under their responsibility to estimate the
prejudice suffered by the Claimant in the case at hand, not only in accordance
with the above-stated criteria contained in article 17 par. 1 of the Regulations and
in due consideration of all specific circumstances of the present matter, but also
with their specific knowledge of the world of football, as well as with the
experience the Chamber itself has gained throughout the years. In that regard,
the Chamber emphasized that it had a considerable scope of discretion in order to
calculate the amount of compensation due as a consequence of a breach of
contract (also recalled in § 87 of CAS 2008/X/XXXX-XXXX).
26.
Consequently, in order to estimate the amount of compensation due to the
Claimant in the present case, the Chamber firstly turned its attention to the
remuneration and other benefits due to the player under the existing contract
and the new contract, which criterion was considered by the Chamber to be
essential. In this context, the members of the Chamber deemed it important to
emphasize that, contrary to the Respondent 1’s allegations in this context, the
wording of article 17 par. 1 of the Regulations allows the Dispute Resolution
Chamber to take into consideration both the existing contract and the new
contract to calculate the amount of compensation, thus enabling the Chamber to
gather indications regarding the economic value attributed to a player by both his
former and his new club.
27.
In this regard, the Dispute Resolution Chamber established, on the one hand, that
the employment contract between the Claimant and the Respondent 1, signed on
20 September 2005, had been set to expire at the end of the season 2009/2010.
The Respondent 1 had undisputedly received his salary until and including June
2007, entailing that the total value of his contract with the Claimant for the
remaining contractual period of three seasons amounts to EUR 2,949,534
composed as follows: EUR 1,869,000 as salary (EUR 623,000 for each of the seasons
2007/2008, 2008/2009 and 2009/2010), EUR 1,052,634 as loyalty bonus (EUR
350,878 for each of the seasons 2007/2008, 2008/2009 and 2009/2010) and EUR
27,900 as rent (EUR 9,300 – amount recognised by the Respondent 1 - for each of
the seasons 2007/2008, 2008/2009 and 2009/2010). In that regard, the Chamber
deemed it appropriate to underline that it was undisputed that, according to a
separate agreement dated 20 September 2005, the Respondent 1 was entitled to
receive, for each season he would remain with the Claimant, a yearly “loyalty
bonus” of EUR 350,878 (EUR 200,000 net), payable each season in two instalments.
On the other hand, the Chamber took note that the Claimant maintained having
paid “a collective bonus” of EUR 45,880 during the season 2005/2006 and of EUR
417,111 the following season and that the said bonus was paid in consideration of
the player’s performance and leadership quality. In view of its character
17
undeniably variable and uncertain from one season to another, the Chamber
could not undoubtedly establish that the Claimant would have paid a “collective
bonus”, and, if any, in what proportion, to the Respondent 1 the remaining three
seasons, and consequently, had no other alternative but to refuse to take into
consideration the said “collective bonus” while assessing the residual value of the
contract. The members, referring to the principle of the burden of proof explicitly
stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the Claimant
had not submitted any convincing documentary evidence in this respect.
28.
On the other hand, the Dispute Resolution Chamber noted that the value of the
new employment contract concluded between the Respondents 1 and 2 for the
same period of time amounts to EUR 4,144,734 composed as follows: EUR 994,734
as salary (EUR 331,576 for each of the seasons 2007/2008, 2008/2009 and
2009/2010) and EUR 3,150,000 as contract premium (EUR 1,050,000 for each of the
seasons 2007/2008, 2008/2009 and 2009/2010). Having stated this, the Dispute
Resolution Chamber took due note that, without taking into consideration
variable bonuses, the Respondent 1 had increased his income over three years by
approximately 40% by concluding an employment contract with the Respondent
2. Furthermore, the Dispute Resolution Chamber recalled that the remuneration
paid by the player’s new club to the Respondent 1 is particularly relevant insofar
as it reflects the value attributed to his services by his new club at the moment the
breach of contract occurs and may possibly also provide an indication towards the
player’s estimated market value at that time.
29.
The members of the Chamber then turned to the essential criterion relating to the
fees and expenses possibly paid by the Claimant for the acquisition of the
Respondent 1’s services insofar as these have not yet been amortised over the
term of the relevant contract.
30.
In casu, the Chamber noted that the Claimant requested an amount of EUR
2,519,632 as non-amortised fees or expenses. This figure apparently includes the
transfer compensation paid to J in order to acquire the Respondent 1’s services for
the 1999/2000 season, i.e. at the time of the conclusion of the first employment
contract between the Claimant and the Respondent 1.
31.
In that sense, the Chamber recognised the transfer compensation paid by the
Claimant to J as being such kind of expenses, but recalled that the Respondent 1
had remained with the Claimant eight years in total, whereas the first
employment contract provided for an initial period of validity of five years.
Therefore, the Chamber considered that all the fees and expenses paid in
connection with the conclusion of the first employment contract, in particular, the
amount of EUR 5,422,797,25 paid to J, had been fully amortised over the period of
time of five years. Consequently, and in line with the wording of art. 17 par.1 of
the Regulations, this amount, or any part of it, cannot be claimed as part of the
compensation for the breach of contract without just cause.
32.
However, the Dispute Resolution Chamber took due note that the Claimant had
paid an amount of EUR 60,000 to the agent, Mr X, in relation to the signature of
18
the contract at the basis of the present dispute and that this amount had not been
fully amortized as a direct consequence of the breach of contract committed by
the Respondent 1. As stated above, the Respondent 1 was still bound to the
Claimant by three further years of contract when he terminated the relevant
employment contract, which was signed by the parties to remain contractually
bound to each other during a total of five years. As a result of the player’s breach
of contract in June 2007, the Claimant has thus been prevented from amortising
the amount of EUR 36,000, i.e. 3/5 of EUR 60,000, relating to the agent fee that it
had paid in order to conclude the contract with the Respondent 1, which, at that
time, the Claimant trusted would be valid for the next five years. On a side note,
the Chamber was eager to point out that this damage head had been
acknowledged in its principle by the Respondent 2 as being part of the
compensation due to the Claimant.
33.
With regard to the agent’s fees paid in connection with the conclusion of the
previous employment contracts between the Claimant and the Respondent 1, the
Chamber unanimously decided that they were in no link whatsoever with the
contract signed in September 2005 and, therefore, should not be taken into
consideration when establishing the compensation.
34.
In continuation, the Chamber took note that Claimant requested the payment of
the amounts of EUR 186,266 as “missing profit coming from stadium tickets
revenues”, of EUR 563,036 as “image damages towards the sponsors”, of EUR
1,407,344 “damages due to the loss of sporting opportunities and the subsequent
direct and indirect earnings”. Irrespective of the question whether those elements
could be taken into account as “objective criteria” in the sense of art. 17 par. 1 of
the Regulations in order to calculate the compensation due to the Claimant for
the breach of contract, the Chamber, once again, recalled the contents of art. 12
par. 3 of the Procedural Rules, according to which any party deriving a right from
an alleged fact shall carry the burden of proof, and emphasised that the Claimant
did not demonstrate the existence of such damages and, a fortiori, a link between
the said damages and the breach of contract committed by the Respondent 1.
Thus, in the evident absence of any proof of a casual link, the members of the
Chamber decided that these amounts shall not be taken into consideration when
establishing the compensation to be granted to the Claimant for breach of
contract committed by the Respondent 1.
35.
With regard to the amount claimed of EUR 6,750,000 “for the accruing damage
correlated to the actual value of the Player Services, i.e. the cost at which such
services could have been available on a “transfer basis”, had S and M acted
lawfully, “market value” of a goalkeeper that belongs to the highest level of
competiveness, to which M surely belongs (…)”, in other words as a missed
transfer fee, the Chamber referred to § 117 and 118 of CAS/XXXX/X/XXXX-XXXX,
in which it is stated “the loss of a possible transfer fee can be considered as
compensable damage head if the usual conditions are met, i.e. in particular if
between the breach or the unjustified termination of the agreement and the lost
opportunity to realize a certain profit there is a necessary logical nexus. One may
take into consideration for instance whether an offer made by a third party was
19
accepted or not by the original club and/or the player, but the transfer finally
failed because of the unjustified departure of the player to another club.”
36.
In casu, the Chamber did not find a justification in order not to follow the
jurisprudence related thereto and remarked that the Claimant had not invoked
the existence of any negotiations with a third party nor another “necessary logical
nexus”. In particular, the Claimant did not present any offer from a third party,
which could have given important information on the value of transfer of the
Respondent 1. In other words, the Chamber considered that the Claimant had not
provided it with sufficient proof that it had lost an opportunity to realize a profit
because of the premature termination of contract. As a consequence, in view of
this lack of documentary and convincing evidence, the Chamber refused to
consider the amount of EUR 6,750,000 in order to establish the compensation to
be granted to the Claimant.
37.
The Chamber then turned its attention to the aspect relating to the “specificity of
sport” which is equally explicitly referred to in article 17 par. 1 of the Regulations.
At the outset, the Dispute Resolution Chamber recalled that this important aspect
has been recognised by the European Union and has repeatedly been referred to
by the CAS for the purpose of establishing the applicable amount of
compensation in case of contractual breach, ensuring that the decisions rendered
are not only just and fair from a strictly legal point of view, but that they also
correspond to the specific needs and interests of the football world and its
stakeholders. In this regard, and with reference to the respective jurisprudence of
the CAS, the Dispute Resolution Chamber recalled that the specificity of sport
allows for it to take into account the circumstance that players can be considered
the main asset of a club in terms of their sporting value but also from a rather
economic point of view.
38.
In line with the argumentation set out by the Panel in CAS/XXXX/X/XXXX-XXXX,
one of the elements that concretize the concept of specificity of sport is the
remaining time of the contract that has been breached (cf. § 158 et sequ. of
CAS/2008/X/XXXX-XXXX). The Chamber observed that the Respondent 1 had
terminated the contract after two seasons, with three more seasons of duration
remaining under the terms of the contract. The remaining time of the contract
was therefore important, as three seasons out of five are a substantial period of
time.
39.
With regard to the status and behaviour of the parties to the dispute, in particular
the Respondent 1’s status and behaviour, the Chamber wished to make the
following remarks: on the one side, against the Respondent 1, the Chamber
pointed out the exceptional and outstanding position he held within the
organisation of the Claimant. Indeed, the Respondent 1 was the first goalkeeper
of the team, member of the national team of I, one of the best goalkeeper in the I
championship and played a fundamental role in the Claimant’s latest success. In
consequence thereof, the Respondent 1 was considered as an example and a
mentor for his colleagues. In addition, and although it might be questionable
whether the player’s position on the pitch has an impact on the damage caused,
20
the Chamber deemed it relevant to lend emphasis on the fact that the Respondent
1 was a goalkeeper, i.e. a masterpiece of the organisation of the team and,
consequently a position which is, basically, not easy to replace. The foregoing led
the Chamber to conclude that the breach of the employment contract by the
Respondent 1 had prevented the Claimant from counting on one of its key
player’s high quality and valued services for three additional seasons and from
possibly negotiating his transfer to a third club for a financial profit and has, thus,
caused a considerable sporting damage to the Claimant, which shall, consequently
be compensated. On the other hand, in favour of the Respondent 1, the Dispute
Resolution Chamber pointed out that the Respondent 1 had remained with the
Claimant during eight seasons, i.e. from the season of his 22nd until the season of
his 30th birthday. This demonstration of high loyalty of a player towards his club is
not a matter of course in today’s international football. The Chamber also
acknowledged that the Respondent 1 had remained with the Claimant for a
longer period than the one initially intended by the parties in the first
employment contract. Furthermore, the Chamber remarked that the Claimant
itself underlined the Respondent 1’s exceptional role and behaviour throughout
the eight years of contractual relationship and that the latter had been a leader
and an example for the rest of the team. He attracted sponsors and fans, which
allowed the Chamber to stress that the Claimant had received benefits from the
presence of the Respondent 1 within its organisation.
40.
In sum, the Chamber concluded that the amount of compensation for breach of
contract without just cause to be paid by the Respondent 1 to the Claimant is
firstly composed of the amount of EUR 3,547,134 being the reflection of the
average remuneration and other benefits due to the Respondent 1 under the
previous and the new contract and the value attributed to his services by the both
clubs as well as EUR 36,000 being the non-amortized agent fee over the term of
the contract. Equally, the amount of compensation needs to include EUR 350,000
reflecting the sports-related damage caused to the Claimant by the Respondent 1
in the light of the specificity of sport. On account of the above, the Chamber
considered that the total amount of EUR 3,933,134 is to be considered an
appropriate and justified amount of compensation to be awarded to the
Claimant. In this respect, the members of the Chamber finally deemed it
imperative to emphasise that the sanctioning nature of the provisions contained
in art. 17 of the Regulations cannot be disregarded.
41.
Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the
Regulations, the Chamber established that the player’s new club, i.e. the
Respondent 2, shall be jointly and severally liable for the payment of
compensation. In this respect, the Chamber was eager to point out that the joint
and several liability of the player’s new club is independent from the question as
to whether the new club has induced the player to the contractual breach or not.
This conclusion is in line with the well-established jurisprudence of the Chamber
that was repeatedly confirmed by the CAS. Notwithstanding the aforementioned,
and for the sake of completeness, the Chamber recalled that according to article
17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the
21
contrary, that any club signing a Professional who has terminated his contract
without just cause has induced that Professional to commit a breach.
42.
The members of the Chamber emphasised that the breach of contract without just
cause committed by the Respondent 1 outside of the protected period cannot
result in the imposition of sporting sanctions, in compliance with the applicable
Regulations (cf. article 17 par. 3 of the Regulations).
43.
In view of the foregoing, and in conformity with the relevant provision of the
Regulations (cf. article 17 par. 4 sent. 1 of the Regulations e contrario), the player’s
new club, the Respondent 2, shall not be imposed sporting sanctions for possibly
inducing the contractual breach and its responsibility shall in any case be limited
to being jointly and severally liable for the payment of any amount of
compensation for breach of contract that the Respondent 1 will be ordered to pay
as stated above.
44.
In continuation, the members of the Chamber turned their attention to the
contents of art. 17 par. 3 in fine of the Regulations and recalled that the notice of
termination by the Respondent 1 had been given undoubtedly on 8 June 2007. In
this respect, the Chamber took note that the Respondent 1 held that the last
game of the 2006/2007 season had been played on 27 May 2007 and that,
consequently the letter of termination had been sent within fifteen days
following the last match of the pertinent season. The Chamber acknowledged
that the Claimant had neither contested the date of the last match of the
2006/2007 season nor the fact the termination notice from the Respondent 1 could
have been given outside the pertinent time-limit. As a consequence, the Dispute
Resolution Chamber had no other alternative but to consider that no disciplinary
measures had to be imposed on the Respondent 1 in virtue of art. 17 par. 3 in fine
of the Regulations, since it appears that the Respondent 1 had complied with the
obligations stipulated in the aforementioned provision.
45.
In conclusion, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent 1 must
pay the amount of 3,933,134, plus 5% of interest as from 9 June 2007, to the
Claimant as compensation for breach of contract. Furthermore, the Respondent 2
is jointly and severally liable for the payment of the relevant compensation.
46.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further request lodged by the Claimant is rejected.
*****
22
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, C, is partially accepted.
2.
The Respondent 1, M, has to pay to the Claimant, C, the amount of EUR 3,933,134,
as well as 5% interest per year on the said amount as from 9 June 2007, within 30
days as from the date of notification of this decision.
3.
The Respondent 2, S, is jointly and severally liable for the payment of the
aforementioned sum.
4.
Any further claims lodged by the Claimant, C, are rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
6.
The Claimant, C, is directed to inform the Respondent 1, M, and the Respondent 2,
S, immediately and directly of the account number to which the remittance is to
be made and to notify the Dispute Resolution Chamber of every payment
received.
******
23
Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber
Jérôme Valcke
Secretary General
Encl. CAS directives
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